The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Emery Dennis Spencer, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a maximum sentence of approximately fifty-four years in prison after a jury convicted him of multiple counts of California Penal Code sections 288 (lewd and lascivious acts upon a minor), possession of child pornography, and several related offenses. Petitioner raises seven claims in this federal habeas petition; specifically: (1) his convictions for lewd and lascivious acts upon a minor by use of force were based on insufficient evidence ("Claim I"); (2) the trial court impermissibly admitted testimony regarding a threat Petitioner made to "kill everybody involved in this thing" after the preliminary hearing("Claim II"); (3) his right to confront the witnesses against him was violated when the victim covered a portion of her face during her testimony ("Claim III"); (4) the trial court erred in sentencing pursuant to California Penal Code section 667.6 ("Claim IV"); (5) the trial court erred in imposing consecutive sentencing on all counts ("Claim V"); (6) Petitioner's counsel was ineffective to the extent counsel failed to preserve sentencing issues for appeal ("Claim VI"); and, (7) Petitioner's counsel was ineffective due to counsel's decision not to present a defense to the prosecution's case ("Claim VII").*fn1 For the reasons stated herein, the federal habeas petition should be denied.
In 2004, Petitioner was convicted on various sexual offenses against his preteen neighbor, and of possession of child pornography. The specific facts giving rise to each of Petitioner's claims in the instant federal habeas petition are set out more fully below in the discussion of each claim. Suffice it to say, Petitioner's constitutional claims center around three distinct portions of Petitioner's trial. First, as Petitioner was being led out of the courtroom after his preliminary hearing he made a statement that he would "kill everybody involved in this thing." A bailiff heard Petitioner's declaration and the trial judge permitted the bailiff to testify regarding the statement at trial. Second, Petitioner finds constitutional error with regard to the victim's testimony: Petitioner contends that the victim's testimony regarding the explicit details of their sexual encounters did not produce sufficient evidence to support some of his convictions and that the trial judge's decision to allow her, twelve-years-old at the time of trial, to testify with her hand partly covering her face for a ten to fifteen minute portion of her lengthy testimony, so that she would not have to look at Petitioner, violated Petitioner's right to confront the witnesses against him. Lastly, at the close of the prosecution's case, the defense also rested without calling any witnesses or submitting any evidence into the record.
II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
III. ANALYSIS OF PETITIONER'S CLAIMS 1. Claim I
In Claim I, Petitioner argues that there was insufficient evidence to support a guilty finding with respect to the charge of lewd and lascivious acts upon a minor by use of force (also referred to as "forcible child molestation"). Specifically, Petitioner contends that there is insufficient evidence of force or duress as required by California Penal Code section 289(b)(1).
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. California law defines lewd and lascivious acts upon a minor as follows:
(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constitution other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Cal. Penal Code § 288. The California Court of Appeal stated the following in analyzing this Claim on the merits:
Both in his motion for a new trial and in his statement in mitigation, the defendant challenged the sufficiency of the evidence to support the verdicts on two counts of forcible child molestation. In denying the motion, the court cited evidence that the victim kept telling the defendant to stop during both incidents, that the defendant pushed the victim's shoulders down (albeit gently) until she lay flat on the floor as he attempted intercourse, and that he hoisted the victim onto the bed for a second attempt at intercourse.
This accurately reflected the victim's testimony. Tired of the defendant's repeated requests for a sexual encounter, the 11-year-old victim agreed to disrobe while the defendant "[took] care of himself" in exchange for $20. She sat naked on the floor. He put his hands on her shoulders and pushed her gently to the floor. He then tried to penetrate her vagina. She told the defendant to stop. The victim had the impression the position hurt his back. He lifted her up by her underarms and sat her on the bed. She was shaking because she feared losing her virginity and getting pregnant. He had not threatened her at all. When the defendant again attempted to penetrate her, she told him more than once to stop because it hurt (though in fact she did not find his efforts painful). He got off of her, and she put her clothes back on.FN1
FN1. These offenses occurred at another residence before she moved to an apartment complex in June 2003 on Rio Linda Boulevard in which the defendant lived. Almost all of the rest of the crimes took place in their two apartments at that address before the defendant's arrest on June 20, 2003, after the victim's father caught the defendant literally with his pants down during an act of mutual oral copulation.
"[I]n order for the statutory scheme of [Penal Code] section 288 to make sense, the Legislature must have intended that the 'force' required to commit a forcible lewd act under subdivision (b) be substantially different from or substantially greater than the physical force inherently necessary to commit a lewd act proscribed under subdivision (a)." (People v. Griffin (2004) 33 Cal.4th 1015, 1027, citing with approval People v. Cicero (1984) 157 Cal . App.3d 465.)
The modicum of "force" in the present case is certainly minimal for the two counts. And yet in our decision in Cicero, we found all that was necessary was proof of a lewd act (rubbing their crotches) against the will of the victims, occurring while the defendant carried them in what the victims believed was a game. (157 Cal.App.3d at pp. 470, 474, 475-476, 484-485.) In our decision in People v. Pitmon (1985) 170 Cal.App.3d 38, 48, there was sufficient evidence of force where "defendant slightly pushed [the victim]'s back" each time the victim fellated him. In the present case, the defendant twice changed the victim's position to facilitate his attempts at intercourse with her. This involved the application of force different from and greater than that inherent in a lewd act itself. We cannot say that it is insubstantial.
Resp't's Answer, Ex. A (Hereinafter "Slip Op.") at 2-3.
Petitioner does not dispute the underlying factual basis of his conviction. Rather, Petitioner argues that under the facts as set forth in the Court of Appeal decision, Petitioner's actions did not amount to force that was more than inherently necessary to commit a lewd act as required by California Penal Code section 288(b)(1). The California Court of Appeal interpreted California law to the contrary, and such a determination is binding upon a federal court reviewing a petition for habeas corpus. See Jackson, 443 U.S. at 324 n. 16; Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." (citations omitted)).
Interpreting California law, The California Court of Appeal determined that "the 'force' required to commit a forcible lewd act under subdivision (b) [must] be substantially different from or substantially greater than the physical force inherently necessary to commit a lewd act proscribed under subdivision (a)." Slip Op. at 3 (citing People v. Griffin, 33 Cal.4th 1015, 1027, 16 Cal.Rptr.3d 891, 94 P.3d 1089 (2004)) (other citations omitted). The court went on to conclude that changing a victim's position to facilitate intercourse "involve[s] the application of force different from and greater than that inherent in a lewd act itself." Slip Op. at 3; see also People v. Cicero, 157 Cal.App. 3d 465, 204 Cal.Rptr. 582 (1984), disapproved on other grounds by People v. Soto, 51 Cal.4th 229, 119 Cal.Rptr.3d 775, 245 P.3d 410 (2011) (rubbing crotches during what victim thought was a game was enough for conviction under 288(b)); People v. Pitmon, 170 Cal.App. 3d 38, 48, 216 Cal.Rptr. 221 (1985) (slightly pushing ...